Considered and decided by Stoneburner, Presiding Judge; Shumaker,
Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

DIETZEN, Judge

In
this consolidated appeal, the represented appellants challenge the denial of
their post-trial motions and resulting judgment awarding respondents damages on
their defamation and tortious interference with prospective advantage claims, arguing
that (1) their statement that respondent is a Communist is protected free
speech, and there was no evidence of actual malice; and (2) respondents failed
to plead tortious interference with prospective advantage, and that the claim
failed as a matter of law. The pro se
appellants also challenge the award of damages on respondents' tortious
interference with prospective advantage claim, arguing that the award was not
supported by the evidence, and that the jury verdict was based on passion or
prejudice. We affirm in part and reverse
in part.

FACTS

Plaintiff-respondents
Tuan Joseph Pham (respondent Pham) and Mai Vu (respondent Vu) are married and
originally from Vietnam. Respondent Pham quit school at age 18 to join
the army and fight against the Communists.
When the Communists took control of North
Vietnam, respondent Pham fled to the South and joined the
South Vietnamese Army until the fall of Saigon
in April 1975. He was then imprisoned by
the Communist government for two years, and following his release in 1979, he
began efforts to escape the country.
Eventually, he organized a group of one hundred people who fled Vietnam to Indonesia. Respondents and their family then migrated to
Rochester, Minnesota.
In 1989, the respondents purchased a building on University Avenue in St. Paul and opened Capital Market, also a
respondent in this action.

The
Vietnamese Community of Minnesota (VCM) was incorporated in 1981 and
represented the interests of newly-arrived Vietnamese refugees. Historically, the organization was controlled
by elder members of the Vietnamese community who held high military positions
in the former South Vietnamese Army. It
currently represents the majority of the Vietnamese community in Minnesota.

In the late 1990's,
younger members of the Vietnamese community were elected to leadership
positions in the VCM. In 1998,
respondent Pham's son, Alex Pham, was elected vice-president of the VCM. Respondent Pham was also actively involved in
fundraising to construct the VCM's community center and acted as an advisor to
its board of directors.

Unhappy with the changes
in leadership, defendant-appellants Tuan Anh Pham (appellant Pham), Thang Dinh
Le (Le), Linda Vu, Tram Bui, Thanh Van Tran, and others left VCM and formed a
rival organization named the Vietnamese Community of Minnesota Board of
Representatives (VCM-BR). The VCM-BR was
incorporated in 2001, and Linda Vu became its second president.

In
December 2003, respondent Pham learned that Bishop Hoang Van Tiem, the Catholic
bishop for the Bui Chu diocese in Vietnam,
would be visiting the United
States.
Respondent Pham invited Bishop Tiem to Minnesota
and the bishop agreed to come, but because of existing difficulties between the
Vietnamese Communist government and the Vatican,
he needed to avoid any public support for South
Vietnamincluding being photographed or seen with the
flag of South Vietnam. Respondent Pham agreed to the condition and served
as Bishop Tiem's driver.

A luncheon was
arranged for Bishop Tiem at a local Vietnamese restaurant, but at the last
minute the location was changed to the Vietnam Community Center. Respondent Pham expressed concern to the
organizer of the event that the bishop could not be seen or photographed with
the South Vietnamese flag that flew over the center. The organizer promised to "take care of
everything." When the bishop and
respondent Pham approached by car, the bishop observed the South Vietnamese flag
flying over the center. Respondent Pham went
into the center and requested the flag be lowered, and the organizer
complied.

Following
the bishop's visit, some members of the Vietnamese community staged protests
regarding the lowering of the flag. A "proclamation"
was issued by a group entitled "Vietnamese Refugee Community of Minnesota,"
criticizing the organizer for ordering the South Vietnamese flag lowered. Appellant Le asked members of the community for
information regarding any individuals involved in the bishop's visit. Appellant Dean Do provided Le with a 1999
letter (Minh letter) that his ex-wife Minh Pham, respondent Pham's daughter,
wrote criticizing respondent Pham. But
the letter was publicly disavowed by Minh Pham in 2000.

In January 2004,
Le sent a letter to President Bush and other public officials (Bush letter), with
a list of 51 "co-signatories," demanding that respondent Pham be removed from his
presidential appointment as a board member of the Vietnam Educational
Foundation (VEF), for "misconduct" and "moral turpitude." The Minh letter, which was attached to the
Bush letter, accused respondent Pham of bribery, tax evasion, physical abuse,
arson and extortion; and that he had poor character and was guilty of
hypocrisy.

Later that same
month, the represented appellants arranged a boycott of Capital Market, in
which protestors held signs and chanted, "Down with the Vietnamese Communists," "Down with Tuan Pham," "Down with Vietnamese
Nationals who acted as Communist Lackeys," and "Boycott the Thudo Market." Hundreds of flyers were circulated announcing
further demonstrations and protests. The
flyers and pamphlets denounced respondent Pham and others as Communists. At the boycott, protestors stated that
Capital Market was a "communist fundraising enterprise," and members of the
Vietnamese community were "ordered" not to shop there.

During an
interview on a national Vietnamese radio station, appellant Linda Vu accused
respondent Pham of being a member of a "Communist sleeper cell" in Minnesota, and that he was
controlled by the Vietnamese Communist government. A proclamation dated February 2004, was
circulated by appellant Le accusing him of supporting the "Ha Noi Communists"
and labeling him a "Communist lackey."

Respondents
commenced legal action against the 51 signatories of the Bush letter, which
included the represented and pro se appellants, for defamation. During the litigation, respondents dismissed
the majority of the co-signatories from the lawsuit on the ground that they had
not reviewed the Bush letter before it was sent. The case proceeded with seven remaining
defendants, six of whom are the subject of these consolidated appeals.

Prior to trial,
the district court concluded that respondent Pham was a limited purpose public
figure. At trial, respondent Pham
testified that he was not a Communist, the Bush and Minh letters were false,
and that appellants had defamed him and destroyed his reputation. Respondent Pham claimed that as a result of
the boycott, he lost rental income of $33,000 and the gross income of his
business decreased by over 50%. In
August 2004, Capital Market was forced to close. Appellants testified that their statement that
respondent Pham is a Communist was protected free speech and related to the
lowering of the South Vietnamese flag.

Following trial,
the jury returned a verdict in favor of respondent Pham for $477,000,
consisting of $130,000 for past harm to reputation; $73,000 for past income
loss; $150,000 for future harm to reputation; $54,000 for damage to future
earnings; and $70,000 in punitive damages.
The jury returned a verdict in favor of Capital Market for $216,000,
consisting of $108,000 for past-income loss; $54,000 for damage to
future-earning capacity; and $54,000 for intentional interference with
prospective advantage. The jury awarded
no damages to Mai Vu.

Appellants
moved for a new trial and for amended findings.
Following arguments, the district court filed its order granting
appellants' motion to amend the verdict on respondent Pham's defamation claims reducing
the total award to $350,000. The
district court also reduced Capital Market's total award to $54,000.

The
represented appellants and the pro se appellants filed separate appeals. Respondent Pham filed a notice of
review. We consolidated the appeals for
determination by the court.

D E C I S I O N

I.

Appellants argue that
the district court erred in denying their motion for amended findings and new
trial regarding respondent's defamation claims.
Appellants argue their statement that respondent Pham is a "Communist"
is protected speech, and was not made with actual malice. Respondents argue that the district court
erred in concluding that respondent Pham was a limited purpose public figure
and reducing their damage awards for loss of past income and loss of future
earning capacity.

We review a
district court's decision to grant or deny a motion for a new trial for an
abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie &
Co., 454 N.W.2d 905, 910 (Minn.
1990). Minn. R. Civ. P. 59.01 provides
that a new trial may be granted for various reasons which include excessive or
insufficient damages, errors of law occurring at the trial, and that the
verdict is not justified by the evidence, or is contrary to law.

To successfully
pursue a common-law defamation claim, a plaintiff must prove that the defendant
made: (1) a false and defamatory statement about the plaintiff; (2) the
statement was unprivileged published to a third party; and (3) the statement
harmed the plaintiff's reputation in the community. Weinberger
v. Maplewood Review, 668 N.W.2d 667, 673 (Minn. 2003). In
1964, the United States Supreme Court decided in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, that
the First Amendment to the United States Constitution limits the application of
the state defamation laws. The Court recognized the need for "a federal rule
that prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement
was made with actual malice'that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." Id. at 279-280, 84 S. Ct.
at 726. The Court reasoned that the "actual
malice" culpability requirement ensures that debate on public issues remains
"uninhibited, robust, and wide-open." Id.at 270, 84 S. Ct.
at 721. Three years later in Curtis Publ'g Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975 (1967), the Supreme Court determined "that the New York Times test should apply to
criticism of public figures' as well as public officials.'" See
Gertz v. Robert Welch, Inc., 418 U.S. 323, 336-337, 94 S. Ct. 2997, 3005 (1974).

The Court later determined
that "in cases raising First Amendment issues . . . an appellate court has an
obligation to make an independent examination of the whole record' in order to
make sure that the judgment does not constitute a forbidden intrusion on the
field of free expression.'" Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485,
499, 104 S. Ct. 1949, 1958 (1984) (quoting New
York Times, 376 U.S. at
284-86, 84 S. Ct. at 728-29). Therefore, "[t]he
question whether the evidence in the record in a defamation case is sufficient
to support a finding of actual malice is a question of law," which we review de
novo. Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S. Ct. 2678, 2694 (1989).

A. Opinion Statements

Appellants first
argue that their allegedly defamatory statements were constitutionally protected
political speech. Specifically,
appellants claim that their statement that respondent Pham is a Communist was
an opinion based on the fact that Pham had the flag lowered at the Vietnam Center.

Both parties rely
on Milkovich v. Lorain Journal Co.,
497 U.S. 1, 110 S. Ct. 2695 (1990), to support their respective
arguments. In that case, Milkovich, a
former high school wrestling coach, brought a defamation action against a
newspaper and its reporter for publishing an article that implied that Milkovich
lied under oath in a judicial proceeding.
Appellants rely on the following language from Milkovich:

[W]e think Hepps[1]
stands for the proposition that a statement on matters of public concern must
be provable as false before there can be liability under state defamation law .
. . . Hepps ensures that a statement of opinion relating to matters of
public concern which does not contain a provably false factual connotation will
receive full constitutional protection.

Id.at 19-20, 110 S. Ct. at 2706. But the Milkovich Court
went on to conclude:

Thus, where a statement of "opinion"
on a matter of public concern reasonably implies false and defamatory facts
regarding public figures or officials, those individuals must show that such
statements were made with knowledge of their false implications or with
reckless disregard of their truth.

Id.at 20, 110 S. Ct. at 2706-07.

The Supreme Court
reversed the dismissal of Milkovich's claim concluding that the connotation
that he committed perjury is sufficiently factual to be susceptible of being
proven true or false. In doing so, Milkovich held that a separate
constitutional privilege for "opinion" was not required in addition to
established safeguards regarding defamation to ensure freedom of expression guaranteed
by the First Amendment. Put another way,
if it is plain that the speaker is expressing a subjective view, such as an
interpretation, a theory, conjecture, or surmise, rather than objectively
verifiable facts, the statement is not actionable. Schlieman
v. Gannett Minn.
Broad., 637 N.W.2d 297, 308 (Minn.
App. 2001).

In Marchant Inv. & Mgmt. Co. v. St. Anthony
West Neighborhood Org., Inc., 694 N.W.2d 92 (Minn. App. 2005), this court
considered a defamation claim under Milkovich. We concluded that to determine whether a
statement is actionable under Milkovich,
consideration must be given to the broad context of the statement, the specific
context and content of the statement, and whether the statement is sufficiently
objective to be susceptible of being proved true or false. Id.at 96.

Generally, falsely
accusing someone of collaborating or sympathizing with Communists is generally
defamatory. See Gertz, 418 U.S.
at 332 n.4, 94 S. Ct. at 3003 n.4 (stating that falsely labeling someone a
"Leninist" or a "Communist-fronter" is generally considered defamatory); see also Rose v. Koch, 278 Minn. 235, 244-45, 154 N.W.2d 409, 417 (1967) (holding that a statement that plaintiff had
collaborated with Communists and Communist-fronters was defamatory). In Rose,
our state supremecourt noted that
statements calling plaintiff a Communist collaborator and Communist-fronter
were defamatory because they implied that the plaintiff collaborated with an
enemy of the state during the Cold War.

Here, appellants argue
that their statements went beyond respondent Pham's role in lowering the South
Vietnamese flag, stating that he is a "Communist lackey" and a member of a "Communist
sleeper cell" controlled by the Vietnamese communists; and that his business,
Capital Market, is a "Communist fundraising enterprise." Thus, appellants' statements went beyond
loose, figurative language, to specific statements that are "sufficiently
factual to be proven true or false." Milkovich, 497 U.S. at 21, 110 S. Ct.
at 2707.
While the First Amendment protects a broad spectrum of speech,
especially speech pertaining to politics and public issues, it is also true
that "society has a pervasive and strong interest in preventing and redressing
attacks upon reputation." Milkovich, 497 U.S. at 22, 110 S. Ct. at 2707-08 (quoting Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S. Ct. 669, 676 (1966)). We
conclude that appellants' statements that respondent Pham is a "Communist
lackey controlled by the Vietnamese Communists" are not political speech protected
by the First Amendment.

B.
Actual Malice

Appellants next
argue there was insufficient evidence of "actual malice" to support the jury
verdict. Actual malice must be shown by
clear and convincing evidence that the defendant made the statements with
actual malice, that is, either knowing that they were false or with reckless
disregard for whether they were true. Anderson v. Liberty Lobby,
477 U.S. 242, 257, 106 S. Ct. 2505, 2514-15 (1986). "Actual malice" can be established by evidence
that the defendants engaged in "purposeful avoidance of the truth." Connaughton,
491 U.S. at 692, 109 S. Ct. at 2698.

Here, appellants
admittedly had no evidence that Tuan Pham is a Communist. They argue that because lowering the South
Vietnamese flag is such an outrage, it could only mean one thingthat Tuan Pham
is a Communist sympathizer. But
appellants failed to produce any evidence that respondent Pham is a Communist. Appellants admitted that at the time the
statements were made that they knew respondent Pham's background in fighting
Communism. Further, the Bush letter contained
many statements that appellants admit were false and defamatory. The public retraction of the contents of the Minh
letter should have alerted appellants to the letter's untruthfulness and
implies a "purposeful avoidance of the truth" by appellants. See Connaughton,
491 U.S. at 692, 109 S. Ct. at 2696, 2698.
Appellants statement that had Pham simply offered an apology for
lowering the South Vietnamese flag that they would have ceased accusing him of
conspiring with the Communists, undercuts their argument that they believed he
was a Communist.

Finally,
respondent Pham argues that the district court erred as a matter of law by
concluding that he was a "limited purpose public figure." But at oral argument, respondent Pham
conceded that his primary argument is that the statements were defamatory and were
made with "actual malice." Because we agree,
it is not necessary for us to address whether respondent Pham was a limited purpose
public figure and, therefore, we decline to do so.

C. Damages

Respondents
argue that the district court erred by granting appellants' motion to amend the
special verdict and by reversing the jury's award of past income loss and loss
of future earning capacity. We review
the grant of a motion to amend a jury verdict for an abuse of that
discretion. Damages for defamation include:
(1) harm to plaintiff's reputation and standing in the community; (2) mental
distress; (3) humiliation; (4) embarrassment; (5) physical disability; and
(6) economic loss caused by the defamatory statement or communication. 4 Minnesota Practice, CIVJIG 50.55 (2006). A party asking for damages must prove the
nature, duration, and consequences of his or her injury, and the jury may not
decide damages based on speculation or guess.
Canada v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997); 4A Minnesota Practice, CIVJIG 90.15 (2006).

The district court
concluded that "there was no evidence presented" to show that Pham suffered a
loss of either past income or future earning capacity and, therefore, reduced
the jury verdict by $73,000 and $54,000, respectively. The district court found that:

The only evidence submitted as to
Capital Market was the gross income that was shown on a monthly basis for the
year 2003 and up until the Market was sold in 2004. There was no testimony regarding expenses,
including but not limited to the cost of goods, labor costs or taxes, which
would have to be subtracted from gross income.
In this court's opinion, the evidence cannot reasonably sustain the
allocation for past income loss or future earning capacity as it relates to
Capital Market.

We agree.

No
evidence was offered during trial specifying the amount of income respondent
Pham received from Capital Market. While
there is some evidence in the record that Pham lost rental income due to the
defamatory statements, the evidence is not specific. Respondent Pham did not
offer of business expenses, which is necessary to determine net income. On this record, the district court did not abuse
its discretion. McCarthy, 567 N.W.2d at 507.

II.

Appellants argue that
the district court erred in not dismissing respondent Capital Market's claim
for tortious interference with prospective advantage on the grounds that
respondents failed to plead the claim in their complaint and that the claim
fails as a matter of law. Initially,
appellants argue that respondent did not plead tortious interference with
prospective advantage, that no amendment to the pleading was granted by the
district court and, therefore, the claim must be dismissed.

Rule 15.02 allows
amendments to the pleadings to conform to the evidence. See Minn.
R. Civ. P. 15.02 (stating that when issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings). Consent to litigate an issue not raised in
pleadings may be implied where a party does not object to evidence relating to
the issue or puts in his own evidence relating to the issue. Folk v.
Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn.
1983); Shandorf v. Shandorf, 401 N.W.2d 439, 442 (Minn.
App. 1987). But where evidence offered
was pertinent to an issue already stated in the pleadings, the trial court may
properly find that no new issue was impliedly litigated by consent. Schumann
v. McGinn, 307 Minn. 446, 469, 240 N.W.2d 525, 538 (1976); Roberge v. Cambridge
Coop. Creamery Co., 243 Minn.
230, 234, 67 N.W.2d 400, 403 (1954).

Capital Market
presented testimony, without objection, that appellants made defamatory
statements during the boycott of its business, resulting in the loss of
customers and damage to its business.
Respondent's claim for wrongful interference was the subject of a jury
instruction and a question on the special verdict form that was presented to
the jury without objection from appellant.
On this record, we conclude that appellants implicitly consented to
litigating the tortious interference claim.
Consequently, we turn to the merits of Capital Market's claim for
tortious interference with prospective advantage.

One who intentionally and improperly
interferes with another's prospective contractual relation . . . is subject to
liability to the other for the pecuniary harm resulting from the loss of the
benefits of the relation, whether the interference consists of (a) inducing or
otherwise causing a third person not to enter into or continue the prospective
relation or (b) preventing the other from acquiring or continuing the
prospective relation.

See
United Wild Rice, 313 N.W.2d at 632-33.

Appellants argue
that Capital Market's claim fails as a matter of law on the ground that it is
duplicative of respondent's defamation claim.
We agree. In Wild v. Rarig, the plaintiff brought a claim for breach of
contract, interference with contract, and defamation. Our supreme court held, among other things,
that a plaintiff's cause of action for tortious interference with prospective
advantage was "essentially" part of his cause of action for defamation. 302 Minn.
at 447, 234 N.W.2d at 793. The court
reasoned that:

The defamation which is the means used
to interfere with his business relationships action is the same defamation that
Dr. Wild seeks to recover damages for under his defamation claim. It seems to
us that, regardless of what the suit is labeled, the thing done to cause any
damage to Dr. Wild eventually stems from and grew out of the defamation.
Business interests may be impaired by false statements about the plaintiff
which, because they adversely affect his reputation in the community, induce
third persons not to enter into business relationships with him.

Id.

Like Rarig, Capital Market's claim of
tortious interference is part of its defamation claim. Capital Market presented the
same evidence, that is, the boycott of its business and the statements made by
appellants at the boycott regarding its business, to support its claim for
damages. Capital Market cannot recover
the same damages under a tortious interference claim that it unsuccessfully sought
to recover under its defamation claim. Specifically,
the district concluded that there was insufficient evidence of damages to
support Capital Market's claim for defamation.
For the same reason, we conclude that there is insufficient evidence to
support Capital Market's damage award for tortious interference with
prospective advantage.

Further, Capital
Market's tortious interference claim fails under our reading of NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct.
3409 (1982). In Claiborne, white merchants who had been damaged as a result of a
civil rights boycott brought a tortious-interference-with-business-relationships
action against civil rights organizations and participants in the boycott. Id. at 889, 102 S. Ct. 3413. The Supreme Court reversed the
lower court, holding that the boycott was constitutionally protected, and that
individuals could only be held liable for damages resulting from violent
activity. Claiborne concluded, among
other things, that:

Civil liability may not be imposed
merely because an individual belonged to a group, some members of which
committed acts of violence. For liability to be imposed by reason of
association alone, it is necessary to establish that the group itself possessed
unlawful goals and that the individual held a specific intent to further those
illegal aims.

Id.at 920, 102 S. Ct. at 3429.

In Claiborne, the purpose of the boycott
was to secure compliance by both civic and business leaders with a lengthy list
of demands for equality and racial justice.
Id.
at 889, 102 S. Ct. at 3413. We
conclude that the protest against Capital Market was done for a lawful
purpose. Appellants organized the
boycott to encourage the public not to shop at Capital Market and to protest of
respondent Pham's role in lowering the South Vietnamese flag at the community
center. Their protest was political and aimed
at obtaining an apology from respondent Pham and seeking his ouster from the
VEF board. Thus, absent unlawful goals
or any specific intent to further unlawful aims, appellants are not liable for
Capital Market's business losses sustained as a result of appellants'
organization of the boycott.

III.

Respondents argue
that the statement of the case and statement of facts in pro se appellants' (Thang
Dinh Le, Bui Tram, and Thanh van Tran) informal briefs and certain pages of the
pro se appellants' appendix should be stricken from the record because they are
not based on evidence introduced at trial. Generally, appellate courts cannot consider material
outside the record on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also
Minn. R. Civ. App. P. 110.01 (defining record on appeal); see also AFSCME Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23
(Minn. App. 1995) (stating that the court may selectively disregard improper
references to evidence outside the record without striking the entire brief), review denied (Minn. May 16, June 14,
1995).

Here, the majority
of the material cited by respondents is simply argument or references to material
that can be found in the district court file.
None of the material to which respondents object, is crucial to deciding
the case. And we may selectively ignore
the extraneous information. Therefore,
we disregard discussion of extraneous events without striking large portions of
appellants' pro se brief. Further, we have
disregarded
evidence not part of the district court record, but found in the appendix of
the pro se appellants' brief.